Cohabiting couples: Does a surviving cohabitee have an automatic right to receive their partner's house?

In 2017, the Office of National Statistics reported that cohabiting couple families were one of the fastest growing family type with 3.3 million cohabiting couples being recorded in that year.

Many cohabitees wrongly assume that the fact that they live together gives them the same legal protection as married couples. Unfortunately, the idea of a common law husband and wife is a myth and no such concept exists. According to our specialist will dispute solicitors, this misconception can, in many cases, lead to will disputes and inheritance disputes after the death of the first cohabitee.

So what happens to a property when the owner dies? Does it automatically pass to the surviving partner?

If the property was owned jointly by the cohabitees, who gets what depends on whether the property was owned as Joint Tenants or Tenants in Common. If the property was owned by a cohabiting couple as Joint Tenants, neither of them would own a specific share of the property. In practice, this means that upon the first death, the legal ownership of the property would automatically pass to the surviving cohabitee.

If the couple owned the property as “Tenants in Common” then on the first death, the surviving partner keeps their share of the property and the deceased’s share would form part of their estate (which would pass according to the provisions in their will or under the Intestacy Rules).

If the property was registered in the sole name of the deceased and there is no valid will in place, the property would pass to certain members of the deceased’s family according the Intestacy Rules. Unfortunately, surviving cohabitees are not recognised under the Intestacy Rules and in this situation, they would have no automatic right to receive a share of the property.

If this happens, the cohabitee could make a claim for reasonable financial provision from their partner’s estate, under the Inheritance (Provision for Families and Dependants) Act (1975) but the onus would be on the surviving partner to issue the claim in court and convince the court that they are entitled to receive reasonable financial provision and their interests would be balanced against the interests of the deceased’s family. Of course, the time and trouble of issuing such a claim would not be necessary if a cohabiting couple had made valid wills.